Lalita Kumari Vs.
Government of U.P. & Others
(Criminal) No.68 of 2008]
State, Represented by Dy. Superintendent of Police Tamil Nadu
[With Criminal Appeal
No.1410 of 2011]
Baldev Singh Cheema
Vs. State Of Punjab & Others
[With Slp (Criminal)
No.5200 of 2009]
Surjit Singh &
Another Vs. State of Punjab & Others
[With Slp (Criminal)
No.5986 of 2010]
Daljit Singh Grewal
Vs. Ramesh Inder Singh
No. arising out of D.26722 of 2008 in Writ Petition (Criminal) No.68 of 2008]
J U D G M E N T
Dalveer Bhandari, J.
propose to deal with the abovementioned writ petition, the criminal appeals and
the contempt petition by this judgment. The question of law involved in these cases
is identical, therefore, all these cases are being dealt with by a common judgment.
In order to avoid repetition, only the facts of the writ petition of Lalita Kumari's
case are recapitulated.
petition has been filed before this Court under Article 32 of the Constitution of
India in the nature of habeas corpus to produce Lalita Kumari, the minor daughter
of Bhola Kamat.
5.5.2008, Lalita Kumari, aged about six years, went out of her house at 9 p.m.
When she did not return for half an hour and Bhola Kamat was not successful in tracing
her, he filed a missing report at the police station Loni, Ghaziabad, U.P.
11.5.2008, respondent no.5 met Bhola Kamat and informed him that his daughter
has been kidnapped and kept under unlawful confinement by the respondent nos.6 to
13. The respondent-police did not take any action on his complaint. Aggrieved
by the inaction of the local police, Bhola Kamat made a representation on 3.6.2008
to the Senior Superintendent of Police, Ghaziabad. On the directions of the Superintendent
of Police, Ghaziabad, the police station Loni, Ghaziabad registered a First Information
Report (F.I.R.) No.484 dated 6.6.2008 under Sections 363/366/506/120B IPC against
the private respondents.
after registration of the FIR against the private respondents, the police did not
take any action to trace Lalita Kumari. According to the allegation of Bhola Kamat,
he was asked to pay money for initiating investigation and to arrest the accused
persons. Ultimately, the petitioner filed this petition under Article 32 of the
Constitution before this Court.
Court on 14.7.2008 passed a comprehensive order expressing its grave anguish on
non-registration of the FIR even in a case of cognizable offence. The Court also
issued notices to all Chief Secretaries of the States and Administrators of the
Union Territories. In response to the directions of the Court, various States and
the Union Territories have filed comprehensive affidavits.
short, but extremely important issue which arises in this petition is whether
under Section 154 of the Code of Criminal Procedure Code, a police officer is bound
to register an FIR when a cognizable offence is made out or he has some latitude
of conducting some kind of preliminary enquiry before registering the FIR.
S.B. Upadhyay, learned senior advocate appearing for the petitioner has tried to
explain the scheme of Section 154 Cr.P.C. with the help of other provisions of the
Act. According to him, whenever information regarding cognizable offence is
brought to the notice of the SHO, he has no option but to register the First
Court also issued notice to the learned Attorney General for India to assist the
Court in this matter of general public importance. Mr. Harish P Raval, the learned
Additional Solicitor General appeared before the Court and made comprehensive submissions.
He also filed written submissions which were settled by him and re-settled by
the learned Attorney General for India.
Additional Solicitor General submitted that the issue which has been referred
to this Court has been decided by a three-Judge Bench of this Court in the case
of Aleque Padamsee and Others v. Union of India and Others (2007) 6 SCC 171. In
this case, this Court while referring to the judgment in the case of Ramesh
Kumari v. State (NCT of Delhi) and Others (2006) 2 SCC 677 in paragraph 2 of
the judgment has observed as under:- "Whenever cognizable offence is
disclosed the police officials are bound to register the same and in case it is
not done, directions to register the same can be given."
State of Gujarat, the respondent in the above case, on the facts thereof, contended
that on a bare reading of a complaint lodged, it appears that no offence was made
and that whenever a complaint is lodged, automatically and in a routine manner an
FIR is not to be registered. This Court after considering Chapter XII and more particularly
Sections 154 and 156 held (paragraphs 6 and 7) that "whenever any information
is received by the police about the alleged commission of offence which is a cognizable
one, there is a duty to register the FIR." There could be no dispute on that
score as observed by this Court. The issue referred to in the reference has
already been answered by the Bench of three Judges. The judgment in Aleque Padamsee
and Others (supra) is not referred in the reference order. It is therefore prayed
that the present reference be answered accordingly.
was submitted on behalf of the Union of India that Section 154 (1) provides that
every information relating to the commission of a cognizable offence if given orally,
to an officer incharge of a police station shall be reduced in writing by him or
under his directions. The provision is mandatory. The use of the word "shall"
by the legislation is indicative of the statutory intent. In case such
information is given in writing or is reduced in writing on being given orally,
it is required to be signed by the persons giving it. It is further provided that
the substance of commission of a cognizable offence as given in writing or reduced
to writing "shall" be entered in a book to be kept by such officer in
such form as the State Government may prescribe in this behalf. Sub-section (2)
provides that a copy of such information as recorded in sub-section (1) shall
be given forthwith free of cost to the informant.
light of the provisions contained in Section 154 (1) and the law laid by this Court
on the subject, the following submissions were placed by the Union of India for
consideration of this Court.
a. The statutory intention
is manifest on a bare reading of provisions of Section 154(1) to the effect that
when an officer incharge of a police station to whom information relating to commission
of cognizable offence has been disclosed, he has no discretion save and except
to reduce the said information in writing by him or under his direction.
b. Section 154(1) does
not have ambiguity and is in clear terms.
c. The use of expression
"shall" clearly manifest the mandatory statutory intention.
d. In construing a
statutory provision, the first and the foremost rule of construction is the literal
construction. It is submitted that all that the Court has to see at the very
outset is what does that provision say. If the provision is unambiguous and if from
that provision, the legislative intent is clear, the Court need not call into
it the other rules on construction of statutes. [Para 22 of Hiralal Rattanlal etc.etc.
v. State of U.P. and Another etc.etc. 1973(1) SCC 216]. This judgment is referred
to and followed in a recent decision of this Court in B. Premanand and Others
v. Mohan Koikal and Others (2011) 4 SCC 266 paras 8 and 9. It is submitted that
the language employed in Section 154 is the determinative factor of the legislative
intent. There is neither any defect nor any omission in words used by the legislature.
The legislative intent is clear. The language of Section 154(1), therefore,
admits of no other construction.
e. The use of expression
"shall" is indicative of the intention of the legislature which has used
a language of compulsive force. There is nothing indicative of the contrary in the
context indicating a permissive interpretation of Section 154. It is submitted
that the said Section ought to be construed as preemptory. The words are precise
and unambiguous (Govindlal Chhaganlal Patel v. Agricultural Produce Market Committee,
Godhra and Others 1975 (2) SCC 482). It is submitted that it is settled law that
judgments of the courts are not to be construed as statutes [para 11 of three-Judge
1 Bench decision of this court in the case of M/s Amar Nath Om Prakash and others
etc. v. State of Punjab and Others (1985) 1 SCC 345]. The abovesaid decision is
followed by a judgment of this Court in the case of Hameed Joharan (dead) and others
v. Abdul Salam (dead) by Lrs. and Others (2001) 7 SCC 573.
f. The provision of Section
154(1) read in light of statutory scheme do not admit of conferring any discretion
on the officer in charge of the police station of embarking upon an preliminary
enquiry prior to registration of an FIR. A preliminary enquiry is a term which is
alien to the Code of Criminal Procedure, 1973 which talks of (i) investigation
(ii) inquiry and (iii) trial. These terms are definite connotations having been
defined under Section 2 of the Act.
g. The concept of preliminary
enquiry as contained in Chapter IX of the CBI (Crime) Manual, first published in
1991 and thereafter updated on 1 15.7.2005 cannot be relied upon to import the concept
of holding of preliminary enquiry in the scheme of the Code of Criminal
h. The interpretation of
Section 154 cannot be depended upon a Manual regulating the conduct of officers
of an organization, i.e., CBI.
i. A reference to para
9.1. of the said Manual would show that preliminary enquiry is contemplated only
when a complaint is received or information is available which may after verification
as enjoined in the said Manual indicates serious misconduct on the part of the
public servant but is not adequate to justify registration of a regular case under
provisions of Section 154 Cr.P.C. Such preliminary inquiry as referred to in para
9.1 of the CBI Manual as also to be registered after obtaining approval of the competent
authority. It is submitted that these provisions cannot be imported into the
statutory scheme of Section 154 so as to provide any discretion to a 1 police officer
in the matter of registration of an FIR.
j. The purpose of registration
of an FIR are manifold -that is to say
reduce the substance of information disclosing commission of a cognizable offence,
if given orally, into writing
given in writing to have it signed by the complainant
maintain record of receipt of information as regards commission of cognizable offences
initiate investigation on receipt of information as regards commission of cognizable
inform Magistrate forthwith of the factum of the information received.
has also been made to the celebrated judgment of the Privy Council in the case
of Emperor v. 1 Khwaza Nazim Ahmad AIR 1945 PC 18 in which it is held that for
the receipt and recording of an information, report is not a condition precedent
to the setting in motion of a criminal investigation. It is further held, that no
doubt, in the great majority of cases criminal prosecution are undertaken as a
result of the information received and recorded in this way. (As provided in Sections
154 to 156 of the earlier Code). It is further held that there is no reason why
the police, if in possession through their own knowledge or by means of credible
though informal intelligence which genuinely leads them to the belief that a cognizable
offence has been committed, should not of their own motion undertake an investigation
into the truth of the matters alleged. It is further held that Section 157 of the
Code when directing that a police officer, who has a reason to suspect from information
or otherwise, that an offence which he is empowered to investigate under
Section 156 has been committed, he shall proceed to investigate the facts and
circumstances of the case. It is further held in 1 the said judgment that, in truth
the provisions as to an information report (commonly called a First Information
Report) are enacted for other reasons. Its object is to obtain early information
of alleged criminal activity, to record the circumstances before there is time
for them to be forgotten or embellished, and it has to be remembered that the report
can be put in evidence when the informant is examined, if it is desired to do so.
It is further held in the said judgment that there is a statutory right on part
of the police to investigate the circumstances of an alleged cognizable crime without
requiring any authority from the judicial authorities.
behalf of the Union of India reference was made to the judgment of this Court
delivered in The State of Uttar Pradesh v. Bhagwant Kishore Joshi AIR 1964 SC
221 wherein it has been held vide para 8 that Section 154 of the Code prescribed
the mode of recording the information received orally or in writing by an officer
incharge of a police station in respect of commission of a cognizable offence. Section
156 thereof authorizes such an officer to investigate any cognizable offence
prescribed therein. Though, ordinarily investigation is undertaken on
information received by a police officer, the receipt of information is not a
condition precedent for investigation.
is further held that Section 157 prescribes the procedure in the matter of such
an investigation which can be initiated either on information or otherwise. It
is also held that it is clear from the said provision that an officer in charge
of a police station can start investigation either on information or otherwise.
The judges in the said judgment referred to a decision of this Court in the case
of H.N. Rishbud and Inder Singh v. The State of Delhi 1955 SCR (1) 1150 at
pp.1157-58 that the graphic description of the stages is only a restatement of the
principle that a vague information or an irresponsible rumour would not by
itself constitute information within the meaning of Section 154 of the Code or
the basis of an investigation under Section 157 thereof. The said case 1 was in
respect of an offence alleged under Prevention of Corruption Act, 1947. The
said case was under the old Code which did not define the term `investigation' (paragraph
18 of the concurring judgment of Justice Mudholkar at page 226). It is also observed
that the main object of investigation mean to bring home the offence to the
offender. The essential part of the duty of an investigating officer in this connection
is, apart from arresting the offender, to collect all material necessary for establishing
the accusation "against" the offender.
following observations in the concurring judgment of Bhagwant Kishore Joshi (supra)
were found in paragraph 18 : "In the absence of any prohibition in the Code,
express or implied, I am of opinion that it is open to a Police Officer to make
preliminary enquiries before registering an offence and making a full scale investigation
into it. No doubt, s. 5A of the Prevention of Corruption Act was enacted for preventing
harassment to a Government servant and with this object in view investigation, except
with the previous permission of a Magistrate, is not permitted to be made by an
officer below the rank of a Deputy Superintendent of Police. Where however, a Police
Officer makes some preliminary enquiries, does not arrest or even question an accused
or question any witnesses but merely makes a few discreet enquiries or looks at
some documents without making any notes, it is difficult to visualise how any possible
harassment or even embarrassment would result therefrom to the suspect or the
case of H.N. Rishbud (supra), in the case under the Prevention of Corruption
Act, 1947, it is observed as under:- "Investigation usually starts on information
relating to the commission of an offence given to an officer in charge of a police
station and recorded under section 154 of the Code. If from information so
received or otherwise, the officer in charge of the police station has reason to
suspect the commission of an offence, he or some other subordinate officer
deputed by him, has to proceed to the spot to investigate the facts and circumstances
of the case and if necessary to take measures for the discovery and arrest of the
offender." It is further held :- "Thus investigation primarily consists
in the ascertainment of the facts and circumstances of the case. By definition,
it includes "all the proceedings under the Code for the collection of evidence
conducted by a police officer". It is further held in the said judgment
that : "Thus, under the Code investigation consists generally of the following
to the spot,
of the facts and circumstances of the case,
and arrest of the suspected offender,
of evidence relating to the commission of the offence which may consist of
a. the examination of
various persons (including the accused) and the reduction of their statements
into writing, if the officer thinks fit,
b. the search of places of
seizure of things considered necessary for the investigation and to be produced
at the trial, and
of the opinion as to whether on the material collected there is a case to place
the accused before a Magistrate for trial and if so taking the necessary steps for
the same by the filing of a charge-sheet under section 173."
was further submitted that this Court in the case of Damodar v. State of
Rajasthan reported in 2004(12) SCC 336 referred to the observations of the
judgment of this Court rendered in case of Ramsinh Bavaji Jadeja v. State of Gujarat
1994 (2) SCC 685 and observed that the question as to at what stage the investigation
commence has to be considered and examined on the facts of each case especially
when the information of alleged cognizable offence has been given on telephone.
The said case deals with information received on telephone by an unknown
person. In paragraph 10 it is observed thus "in order to constitute the FIR,
the information must reveal commission of act which is a cognizable
is further observed in paragraph 11 in the case of Damodar (supra) that in the
context of the facts of the said case, that any telephonic information about commission
of a cognizable offence, if any, irrespective of the nature and details of such
information cannot be 2 treated as an FIR. It is further held that if the
telephonic message is cryptic in nature and the officer incharge proceeds to
the place of occurrence on the basis of that information to find out the details
of the nature of the offence, if any, then it cannot be said that the information
which had been received by him on telephone shall be deemed to be an FIR.
is also observed that the object and purpose of giving such telephonic message is
not to lodge an FIR, but to make the officer incharge of the police station reach
the place of occurrence. It is further held that if the information given on
telephone is not cryptic and on the basis of that information the officer
incharge is prima facie satisfied about commission of a cognizable offence and he
proceeds from the police station after recording such information, to investigate
such offence, then any statement made by any person in respect of the said offence
including the participants shall be deemed to be statement made by a person to the
police officer in the 2 course of investigation covered by Section 162 of the Code.
Court in the case of Binay Kumar Singh v. The State of Bihar 1997(1) SCC 283 observed
as under:- ".....It is evidently a cryptic information and is hardly
sufficient for discerning the commission of any cognizable offence therefrom.
Under Section 154 of the Code the information must unmistakably relate to the
commission of a cognizable offence and it shall be reduced to writing (if given
orally) and shall be signed by its maker. The next requirement is that the substance
thereof shall be entered in a book kept in the police station in such form as the
State Government has prescribed. First information report (FIR) has to be prepared
and it shall be forwarded to the magistrate who is empowered to take cognizance
of such offence upon such report. The officer in charge of a police station is
not obliged to prepare FIR on any nebulous information received from somebody who
does not disclose any authentic knowledge about commission of the cognizable
offence. It is open to the officer-in-charge to collect more information containing
details about the occurrence, if available, so that he can consider whether a cognizable
offence has been committed warranting investigation thereto."
is submitted that in the said judgment what fell for consideration of the Court
was the conviction and sentence in respect of the offence under Sections 302/149
of the IPC in respect of a murder which took place in a Bihar village wherein lives
of 13 people were lost and 17 other were badly injured along with burning alive
of large number of mute cattle and many dwelling houses. It is also submitted that
the interpretation of Section 154 was not directly in issue in the said judgment.
is placed on a decision of this Court in the case of Madhu Bala v. Suresh Kumar
and Others reported as 1997 (8) SCC 476 in the context of Sections 156(3) 173(2),
154 and 190(1) (a) and (b) and more particularly upon the following paragraphs of
the said judgment. The same read as under:- "Coming first to the relevant
provisions of the Code, Section 2(d) defines "complaint" to mean any
allegation made orally or in writing to a Magistrate, with a view to his taking
action under the Code, that some person, whether known or unknown has committed
an offence, but does not include a police report.
Under Section 2(c) "cognizable
offence" means an offence for which, and "cognizable case" means
a case in which a police officer may in accordance with the First Schedule (of the
Code) or under any other law for the time being in force, arrest without a warrant.
Under Section 2(r) "police report" means a report forwarded by a police
officer to a Magistrate under sub- section (2) of Section 173 of the Code. Chapter
XII of the Code comprising Sections 154 to 176 relates to information to the
police and their powers to investigate.
Section 154 provides,
inter alia, that the officer in charge of a police station shall reduce into writing
every information relating to the commission of a cognizable offence given to him
orally and every such information if given in writing shall be signed by the person
giving it and the substance thereof shall be entered in a book to be kept by such
officer in such form as the State Government may prescribe in this behalf.
Section 156 of the Code
with which we are primarily concerned in these appeals reads as under:
A. "Any officer in
charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a court having jurisdiction over the local area within
the limits of such station would have power to inquire into or try under the provisions
of Chapter XIII.
B. No proceeding of a
police officer in any such case shall at any stage be called in question on the
ground that the case was one which such officer was not empowered under this
section to investigate.
C. Any Magistrate empowered
under Section 190 may order such an investigation as above mentioned." On completion
of investigation undertaken under Section 156(1) the officer in charge of the police
station is required under Section 173(2) to forward to a Magistrate empowered
to take cognizance of the offence on a police report, a report in the form prescribed
by the State Government containing all the particulars mentioned therein. Chapter
XIV of the Code lays down the conditions requisite for initiation of proceedings
by the Magistrate.
Under sub-section (1)
of Section 190 appearing in that Chapter any Magistrate of the First Class and
any Magistrate of the Second Class specially empowered may take cognizance of any
offence (a) upon receiving a "complaint" of facts which constitutes such
offence; (b) upon a "police report" of such facts; or (c) upon information
received from any person other than a police officer, or upon his own knowledge
that such offence has been committed. Chapter XV prescribes the procedure the
Magistrate has to initially follow if it takes cognizance of an offence on a complaint
under Section 190(1)(a).
counsel for the Union of India relied on the following passage from Madhu Bala
(supra) :- 2 "From a combined reading of the above provisions it is abundantly
clear that when a written complaint disclosing a cognizable offence is made before
a Magistrate, he may take cognizance upon the same under Section 190(1)(a) of the
Code and proceed with the same in accordance with the provisions of Chapter XV.
The other option available
to the Magistrate in such a case is to send the complaint to the appropriate police
station under Section 156(3) for investigation. Once such a direction is given
under sub-section (3) of Section 156 the police is required to investigate into
that complaint under sub- section (1) thereof and on completion of investigation
to submit a "police report" in accordance with Section 173(2) on which
a Magistrate may take cognizance under Section 190(1)(b) -- but not under 190(1)(a).
Since a complaint
filed before a Magistrate cannot be a "police report" in view of the definition
of "complaint" referred to earlier and since the investigation of a "cognizable
case" by the police under Section 156(1) has to culminate in a
"police report" the "complaint" -- as soon as an order under
Section 156(3) is passed thereon -- transforms itself to a report given in writing
within the meaning of Section 154 of the Code, which is known as the first information
report (FIR). As under Section 156(1), the police can only investigate a cognizable
"case", it has to formally register a case on that report."
Raval also relied on the following passage from Madhu Bala' s case:- "From
the foregoing discussion it is evident that whenever a Magistrate directs an investigation
on a "complaint" the police has to register a cognizable case on that
complaint treating the same as the FIR and comply with the requirements of the above
Rules. It, therefore, passes our comprehension as to how the direction of a
Magistrate asking the police to "register a case" makes an order of investigation
under Section 156(3) legally unsustainable.
Indeed, even if a Magistrate
does not pass a direction to register a case, still in view of the provisions
of Section 156(1) of the Code which empowers the police to investigate into a cognizable
"case" and the Rules framed under the Indian Police Act, 1861 it (the
police) is duty-bound to formally register a case and then investigate into the
The provisions of the
Code, therefore, do not in any way stand in the way of a Magistrate to direct
the police to register a case at the police station and then investigate into the
same. In our opinion when an order for investigation under Section 156(3) of
the Code is to be made the proper direction to the police would be "to register
a case at the police station treating the complaint as the first information report
and investigate into the same".
Court in the case of Hallu and others v. State of Madhya Pradesh 1974 (4) SCC 300
in the context of Section 154 of the Code held (para 7) that Section 154 of the
Code does not require that the Report 2 must be given by a person who has personal
knowledge of the incident reported. It is further held that the said Section speaks
of an information relating to the commission of a cognizable offence given to an
officer incharge of a police station.
Raval placed reliance on para 8 of the judgment of this Court in the case of Rajinder
Singh Katoch v. Chandigarh Administration and others 2007 (10) SCC 69, wherein
this Court observed as under:-
Although the officer in
charge of a police station is legally bound to register a first information report
in terms of Section 154 of the Code of Criminal Procedure, if the allegations made
by them give rise to an offence which can be investigated without obtaining any
permission from the Magistrate concerned, the same by itself, however, does not
take away the right of the competent officer to make a preliminary enquiry, in a
given case, in order to find out as to whether the first information sought to
be lodged had any substance or not.
In this case, the authorities
had made investigations into the matter. In fact, the Superintendent of Police
himself has, pursuant to the directions issued by the High Court, investigated into
the matter and visited the spot in order to find out the truth in the complaint
of the petitioner from the neighbours. It was found that the complaint made by the
appellant was false and the same had been filed with an ulterior motive to take
illegal possession of the first floor of the house."
referring to the decision of this Court in Ramesh Kumari (supra) in para 11 of the
judgment in Rajinder Singh's case, it is observed as under:- "11. We are not
oblivious to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi)
wherein such a statutory duty has been found in the police officer. But, as indicated
hereinbefore, in an appropriate case, the police officers also have a duty to make
a preliminary enquiry so as to find out as to whether allegations made had any substance
is further submitted that the above observations run concurrently to the
settled principles of law and more particularly the three judge Bench decision
of this Court in Aleque Padamsee and Others (supra).
the context of the statutory provisions, the learned counsel for the Union of
India drew the attention 2 of this Court to the decision of this Court in the
case of Superintendent of Police, CBI and Others v. Tapan Kumar Singh AIR 2003
SC 4140, paragraph 20 at page 4145 as under:- "It is well settled that a
First Information Report is not an encyclopedia, which must disclose all facts and
details relating to the offence reported. An informant may lodge a report about
the commission of an offence though he may not know the name of the victim or his
assailant. He may not even know how the occurrence took place.
A first informant
need not necessarily be an eye witness so as to be able to disclose in great details
all aspects of the offence committed. What is of significance is that the information
given must disclose the commission of a cognizable offence and the information
so lodged must provide a basis for the police officer to suspect the commission
of a cognizable offence. At this stage it is enough if the police officer on the
basis of the information given suspects the commission of a cognizable offence,
and not that he must be convinced or satisfied that a cognizable offence has been
committed. If he has reasons to suspect, on the basis of information received, that
a cognizable offence may have been committed, he is bound to record the information
and conduct an investigation.
At this stage it is also
not necessary for him to satisfy himself about the truthfulness of the 3 information.
It is only after a complete investigation that he may be able to report on the
truthfulness or otherwise of the information. Similarly, even if the information
does not furnish all the details, he must find out those details in the course
of investigation and collect all the necessary evidence. The information given disclosing
the commission of a cognizable offence only sets in motion the investigative machinery,
with a view to collect all necessary evidence, and thereafter to take action in
accordance with law. The true test is whether the information furnished provides
a reason to suspect the commission of an offence, which the concerned police officer
is empowered under Section 156 of the Code to investigate.
If it does, he has no
option but to record the information and proceed to investigate the case either
himself or depute any other competent officer to conduct the investigation. The
question as to whether the report is true, whether it discloses full details
regarding the manner of occurrence, whether the accused is named, and whether there
is sufficient evidence to support the allegations are all matters which are alien
to the consideration of the question whether the report discloses the commission
of a cognizable offence. Even if the information does not give full details regarding
these matters, the investigating officer is not absolved of his duty to
investigate the case and discover the true facts, if he can."
Court in its decision in the case of Ramesh Kumari (supra) has observed as
under in paragraphs 3, 4 and 5 :- "3. Mr Vikas Singh, the learned Additional
Solicitor General, at the outset, invites our attention to the
counter-affidavit filed by the respondent and submits that pursuant to the
aforesaid observation of the High Court the complaint/representation has been subsequently
examined by the respondent and found that no genuine case was established. We are
not convinced by this submission because the sole grievance of the appellant is
that no case has been registered in terms of the mandatory provisions of
Section 154(1) of the Criminal Procedure Code.
Genuineness or otherwise
of the information can only be considered after registration of the case. Genuineness
or credibility of the information is not a condition precedent for registration
of a case. We are also clearly of the view that the High Court erred in law in dismissing
the petition solely on the ground that the contempt petition was pending and the
appellant had an alternative remedy. The ground of alternative remedy nor
pending of the contempt petition would be no substitute in law not to register
a case when a citizen makes a complaint of a cognizable offence against a
police officer. 4. That a police officer mandatorily registers a case on a complaint
of a cognizable offence by the citizen under Section 154 of the Code is no more
The point of law has been
set at rest by this Court in State of Haryana v. Bhajan Lal. This Court after
examining the whole gamut and intricacies of the mandatory nature of Section 154
of the Code has arrived at the finding in paras 31 and 32 of the judgment as
under: (SCC pp. 354-55) 31. At the stage of registration of a crime or a case on
the basis of the information disclosing a cognizable offence in compliance with
the mandate of Section 154(1) of the Code, the police officer concerned cannot embark
upon an enquiry as to whether the information, laid by the informant is reliable
and genuine or otherwise and refuse to register a case on the ground that the information
is not reliable or credible.
On the other hand, the
officer in charge of a police station is statutorily obliged to register a case
and then to proceed with the investigation if he has reason to suspect the
commission of an offence which he is empowered under Section 156 of the Code to
investigate, subject to the proviso to Section 157. (As we have proposed to make
a detailed discussion about the power of a police officer in the field of investigation
of a cognizable offence within the ambit of Sections 156 and 157 of the Code in
the ensuing part of this judgment, we do not propose to deal with those sections
in extension in the present context.)
In case, an officer in
charge of a police station refuses to exercise the jurisdiction vested in him and
to register a case on the information of a cognizable offence reported and thereby
violates the statutory duty cast upon him, 3 the person aggrieved by such refusal
can send the substance of the information in writing and by post to the
Superintendent of Police concerned who if satisfied that the information forwarded
to him discloses a cognizable offence, should either investigate the case
himself or direct an investigation to be made by any police officer subordinate
to him in the manner provided by sub-section (3) of Section 154 of the Code.
Be it noted that in
Section 154(1) of the Code, the legislature in its collective wisdom has carefully
and cautiously used the expression `information' without qualifying the same as
in Section 41(1)(a) or (g) of the Code wherein the expressions, `reasonable complaint'
and `credible information' are used. Evidently, the non-qualification of the word
`information' in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may
be for the reason that the police officer should not refuse to record an information
relating to the commission of a cognizable offence and to register a case
thereon on the ground that he is not satisfied with the reasonableness or credibility
of the information. In other words, `reasonableness' or `credibility' of the said
information is not a condition precedent for registration of a case.
A comparison of the present
Section 154 with those of the earlier Codes will indicate that the legislature had
purposely thought it fit to employ only the word `information' without qualifying
the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act 25 of
1861) passed by the Legislative Council of India read that `every complaint or information'
3 preferred to an officer in charge of a police station should be reduced into writing
which provision was subsequently modified by Section 112 of the Code of 1872
(Act 10 of 1872) which thereafter read that `every complaint' preferred to an officer
in charge of a police station shall be reduced in writing.
The word `complaint' which
occurred in previous two Codes of 1861 and 1872 was deleted and in that place
the word `information' was used in the Codes of 1882 and 1898 which word is now
used in Sections 154, 155, 157 and 190(c) of the present Code of 1973 (Act 2 of
1974). An overall reading of all the Codes makes it clear that the condition which
is sine qua non for recording a first information report is that there must be an
information and that information must disclose a cognizable offence."
this Court in Ramesh Kumari (supra) in para 33 said :- "33. It is,
therefore, manifestly clear that if any information disclosing a cognizable offence
is laid before an officer in charge of a police station satisfying the requirements
of Section 154(1) of the Code, the said police officer has no other option except
to enter the substance thereof in the prescribed form, that is to say, to register
a case on the basis of such information."
views expressed by this Court in paras 31, 32 and 33 as quoted above leave no manner
of doubt that the provision of Section 154 of the Code is mandatory and the officer
concerned is duty-bound to register the case on the basis of such an information
disclosing cognizable offence.
the case of Ramesh Kumari (supra), this Court has held that the views expressed
by this Court in the case of State of Haryana and Others v. Bhajan Lal and
Others 1992 Suppl. (1) SCC 335 leave no matter of doubt that the provisions of Section
154 of the Code is mandatory and the officer concerned is duty bound to register
the case on the basis of such information disclosing a cognizable offence.
Raval while concluding his arguments reiterated that Section 154 of the Code it
is mandatory for the officer concerned to register the case on the basis of
such information including cognizable offence. According to Union of India, the
police officer has no discretion in the matter and this is according to the legislative
intention behind enacting Section 154 of the Code of Criminal Procedure.
Ratnakar Das, learned senior advocate appearing for the State of U.P. adopted the
arguments addressed by Mr. Raval on behalf of the Union of India and submitted
that the word `shall' appearing in Section 154 mandates the police to enter the
information about commission of a cognizable offence in a book in such form
commonly known as "First Information Report'. At that stage, the police cannot
go into the question about the truth or otherwise of the information and make a
was also submitted by Mr. Das that the word `information' is not qualified by credible
information. It has to be recorded with utmost dispatch and if its recording is
dependent upon any type of preliminary enquiry, then there would be a great temptation
to incorporate the details and circumstances advantageous to the prosecution which
may be lacking in the earlier information. Similarly, if the police is given
the power to hold a preliminary inquiry before registration of an FIR it may
benefit the wrongdoer because by afflux of time, the evidence would be obliterated
or destroyed and thereby justice would be denied to the victim of crime.
Das gave an example that in a bride burning case, when a person makes a complaint
that the husband and the in-laws of his daughter have doused her with kerosene and
set her ablaze and arrangements were being made to cremate the dead body, in
that case, if the police instead of taking immediate steps to register an FIR proceeds
to the spot to seize the dead body and the burnt clothes etc. on the plea that he
is required to make preliminary enquiry to ascertain the truth, then during the
interregnum, no evidence would be available to bring the offenders to book. It
needs to mention that power is conferred upon the police under the Code to make
seizure in course of investigation and not during the enquiry. So, the police
being in connivance with the accused may permit them to cremate the dead body in
order to cause disappearance of the evidence.
is further submitted by Mr. Das that now-a-days custodial violence is on the rise.
Horror of Bhagalpur blinding case and the Maya Tyagi case in Uttar Pradesh are
still in the minds of the people. It is complained that the police do not take
action against their own brethren who commit crimes. Most of the times the Court
intervenes and it is only then that the person wronged gets justice. In such
cases if the police is given handle to hold a preliminary enquiry the offender
will get a scope to fabricate evidence and ultimately the police will deny registration
of an FIR on the ground that the preliminary enquiry does not reveal any such offence
having been committed at all.
was submitted on behalf of the Union of India and the State of U.P. that in the
Code the Legislature never intended to incorporate any provision for conducting
any `preliminary enquiry' before registering an FIR when a report regarding commission
of a cognizable offence is made. The specific question on this issue was never raised
or agitated earlier before this Court at any point of time whether as a general
rule the police should hold a preliminary enquiry before registering an FIR and
take further steps in the investigation.
Only in two cases in respect
of the offence under Prevention of Corruption Act which was to be investigated by
the Central Bureau of Investigation (CBI) this Court taking note of the
peculiar facts and circumstances of those cases, made an observation that where
public servant is charged with acts of dishonesty amounting to serious misdemeanor,
registering an FIR should be preceded by some suitable preliminary enquiry.
In another case in which
dispute regarding property between the brothers was involved, this Court in the
peculiar facts of that case made an observation that though the officer in charge
of a police station is legally bound to register a First Information Report in terms
of Section 154 of the Code, if the allegations give rise to an offence which can
be investigated without obtaining permission from the Magistrate, the same however,
does not take away the right of the competent officer to make a preliminary enquiry
in a given case in order to find whether the FIR sought to be lodged has any
substance or not.
to him, the grievance of the appellant in the said case was that his report which
revealed commission of a cognizable case was not treated as an FIR by the
concerned police. It was not the issue nor was any argument advanced as to whether
registering of an FIR as provided under Section 154 of the Code should be preceded
by some sort of preliminary enquiry or not. In such view of the matter, the observation
of this Court that it does not take away the right of the competent officer to make
a preliminary enquiry in a given case is nothing but a passing observation.
to Mr. Das, the provision of law about registration of an FIR is very clear and
whenever information relating to cognizable offence is received by the police, in
that event the police had no option but to register the FIR.
Shekhar Naphade, learned Senior counsel appearing for the State of Maharashtra
on the other hand has taken a different view as taken by the Union of India and
submitted that before registering an FIR under Section 154 Cr.P.C. it is open to
the SHO to hold a preliminary enquiry to ascertain whether there is prime facie
case of commission of cognizable offence or not.
Naphade has comprehensively explained the statutory scheme of Section 154 Cr.P.C..
According to him, Sections 41, 57 154(3) 156(1) and 156(3), 157, 167, 190 and
202 are an integral part of the statutory scheme relating to investigation of crimes.
These provisions clearly contemplate that the police officer can exercise powers
under the aforesaid provisions provided he is prima-facie satisfied that there
are reasonable grounds to believe that the accused is guilty of commission of the
154 of Cr.P.C. forms a part of a chain of statutory provisions relating to investigation,
and therefore, it must follow that the provisions of Sections 41, 157, 167 etc.
have a bearing on the interpretation of Section 154 of Cr.P.C. The said judgments
have interpreted Section 154 of Cr.P.C. purely on the literal interpretation test
and while doing so, the other important tests of statutory interpretation, like
a statute must be read as a whole and no provision of a statute should be considered
and interpreted de-hors the other provisions, the rule of purposive
construction etc. are lost sight of. He referred to the following cases - Tarachand
and Another v. State of Haryana 1971 (2) SCC 579, Sandeep Rammilan Shukla v. State
of Maharashtra and Others 2009 (1) Mh.L.J. 97, Sakiri Vasu v. State 4 of Uttar
Pradesh and Others 2008 (2) SCC 409, Nasar Ali v. State of Uttar Pradesh 1957
SCR 657, Union of India and Another v. W.N. Chadha 1993 (Suppl.) 4 SCC 260, State
of West Bengal v. S.N. Basak 1963 (2) SCR 52.
submitted that in the case of allegations relating to medical negligence on the
part of doctors, this Court has clearly held that no medical professional
should be prosecuted merely on the basis of the allegations in the complaint. There
should be an in- depth enquiry into the allegations relating to negligence and this
necessarily postulates a preliminary enquiry before registering an FIR or before
entering on investigation. He reported to State of M.P. v. Santosh Kumar - 2006
(6) SCC 1 and Dr. Suresh Gupta v. Govt. of NCT of Delhi and Another 2004(6) SCC
also submitted that the same principle can also be made applicable to the people
of different categories. The literal interpretation of Section would mean the registration
of an FIR to a mechanical act. The registration of an FIR results into serious consequences
for the person named as accused therein. It immediately results in loss of reputation,
impairment of his liberty, mental anguish, stigma, etc. It is reasonable to
assume that the legislature could not have contemplated that a mere mechanical
act on the part of SHO should give rise to such consequences.
submitted that the registration of an FIR under Section 154 of Cr.P.C. is an
administrative act of a police officer. In the case of Rai Sahib Ram Jawaya
Kapur and Others v. State of Punjab 1955 (2) SCR 225, this Court has explained
what is administrative function and has said that ordinarily the executive
power connotes the residue of Government functions that remain after legislative/judicial
functions are taken away. Every administrative act must be based on application
of mind, scrutiny and verification of the facts. No administrative act can ever
be a mechanical one. This is the requirement of rule of law. Reference was made
to paras 12 and 13 of State (Anti-Corruption Branch), Govt. of NCT of Delhi and
Another v. Dr. R.C. Anand and Another 2004 (4) SCC 615.
to Mr. Naphade, these judgments have not considered the impact of Article 21 on
Section 154 of Cr.P.C. After and beginning with Maneka Gandhi v. Union of India
and Another 1978 (1) SCC 248, this Court has applied Article 21 to several
provisions relating to criminal law. This Court has also said that the expression
"law" contained in Article 21 necessarily postulates law which is reasonable
and not merely a statutory provision irrespective of its reasonableness or otherwise.
In the light of Article 21, provisions of Section 154 of Cr.P.C. must be read down
to mean that before registering an FIR, the Station House Officer must have a prima-facie
satisfaction that there is commission of cognizable offence as registration of an
FIR leads to serious consequences for the person named as accused and for this
purpose, the requirement of preliminary enquiry can be spelt out in Section 154
and can be said to be implicit within the provisions of Section 154 of Cr.P.C.
Reliance was placed on Maneka Gandhi (supra) and S.M.D. Kiran Pasha v. Government
of Andhra Pradesh and Others 1990 (1) SCC 328.
fact that Sections 154 (3), 156(3), 190, 202 etc. clearly provide for remedies to
a person aggrieved by refusal on the part of the SHO to register an FIR,
clearly show that the statute contemplates that in certain circumstances the
SHO can decline to register an FIR.
require SHO to register an FIR irrespective of his opinion that the allegations
are absurd or highly improbable, motivated etc. would cause a serious prejudice
to the person named as accused in the complaint and this would violate his
rights under Article 21. This Court has recognized the concept of pre- violation
protection implicit in Article 21. The said 4 judgments while relying upon the literal
interpretation test have not considered the rule of statutory interpretation that
in certain situations the expression "shall" does not convey mandatory
character of the provisions. For example, proviso to Section 202 (2) has been held
using the expression "shall" not to be mandatory but directory. After
all, Section 154 of Cr.P.C. is a part of the procedural law and in respect of procedural
law, the expression "shall" may not always necessarily convey that
the provision is mandatory. Mr. Naphade placed reliance on the following cases -
P.T. Rajan v. T.P.M. Sahir and Others 2003(8) SCC 498, Shivjee Singh v. Nagendra
Tiwary and Others 2010 (7) SCC 578 and Sarbananda Sonowal (II) etc. v. Union of
India 2007 (1) SCC 174. The said judgments have also not considered the rule of
purposive interpretation and also that the statute must be considered as a
whole and no provision can be interpreted in isolation.
non-registration of an FIR does not result in crime going unnoticed or
unpunished. The registration of an FIR is only for the purpose of making the
information about the cognizable offence available to the police and to the judicial
authorities at earliest possible opportunity. The delay in lodging an FIR does
not necessarily result in acquittal of the accused. The delay can always be explained.
Naphade also submitted that this Court has also held that registration of an FIR
is not a condition precedent for initiating investigation into the commission of
a cognizable offence. Section 154 Cr.P.C. clearly imposed a duty on the police officer.
When an information is received, the officer in charge of the police station is
expected to reach the place of occurrence as early as possible. It is not necessary
for him to take steps only on the basis of an FIR. It is the duty of the State to
protect the life of an injured as also an endeavour on the part of the
responsible police officer to reach the place of occurrence in his implicit duty
and responsibility. This has been held in the case of Animireddy Venkata Ramana
and Others v. Public Prosecutor, High Court of Andhra Pradesh 2008 (5) SCC 368.
Naphade further submitted that ordinarily the SHO should record an FIR upon receiving
a complaint disclosing the ingredients of a cognizable offence, but in certain situations
he should have the discretion of holding a preliminary enquiry and thereafter if
he is satisfied, register an FIR.
provisions contained in Section 154 Cr.P.C. of 1973 were also there in the 1898
Cr.P.C. and even the earlier one of 1877. The interpretation that was placed by
the High Courts and the Privy Council on these provisions prior to Maneka Gandhi
(supra) rested principally on the words used in the Section de-hors the other
provisions of the Act and also de-hors the impact of Article 21 of the Constitution
on the criminal jurisprudence. In other words, the courts have followed the test
of literal interpretation without considering the impact of Article 21.
is a trite proposition that a person who is named in an FIR as an accused, suffers
social stigma. If an innocent person is falsely implicated, he not only suffers
from loss of reputation but also mental tension and his personal liberty is seriously
impaired. After Maneka Gandhi's case, the proposition that the law which deprives
a person of his personal liberty must be reasonable, both from the stand point of
substantive aspect as well as procedural aspect is now firmly established in our
constitutional law. This warrants a fresh look at Section 154 of Cr.P.C. Section
154 Cr.P.C. must be read in conformity with the mandate of Article 21. If it is
so interpreted, the only conclusion is that if a Police Officer has doubts about
the veracity of the complaint, he can hold preliminary enquiry before deciding
to record or not to record an FIR.
is the mandate of Article 21 which requires a Police Officer to protect a citizen
from baseless allegations. This, however, does not mean that before registering
an FIR the police officer must fully investigate the case. A delicate balance has
to be maintained between the interest of the society and protecting the liberty
of an individual. Therefore, what should be the precise parameters of a preliminary
enquiry cannot be laid down in abstract. The matter must be left open to the
discretion of the police officer.
proposition that the moment the complaint discloses ingredients a cognizable offence
is lodged, the police officer must register an FIR without any scrutiny whatsoever,
is an extreme proposition and is contrary to the mandate of Article 21. Similarly,
the extreme point of view is that the police officer must investigate the case substantially
before registering an FIR is also an argument of the other extreme. Both must be
rejected and a middle path must be chosen.
mentioned about Maneka Gandhi's case and observed that the attempt of the Court
should be to expand the reach and ambit of the fundamental rights, rather than to
attenuate their meaning and contents by a process of judicial construction. The
immediate impact of registration of an FIR on an innocent person is loss of reputation,
impairment of personal liberty resulting in mental anguish and, therefore, the
act of the police officer in registering an FIR must be informed by reason and
it can be so only when there is a prima facie case against the named accused.
to Mr. Naphade, the provisions of Article 14 which are an anti-thesis of arbitrariness
and the provisions of Articles 19 and 21 which offer even a pre- violation protection
require the police officer to see that an innocent person is not exposed to
baseless allegations and, therefore, in appropriate cases he can hold preliminary
enquiry. In Maneka Gandhi's case this Court has specifically laid down that in R.C.
Cooper's case it has been held that all fundamental rights must be read
together and that Articles 14, 19 and 21 overlap in their content and scope and
that the expression `personal liberty' is of the widest amplitude and covers a variety
of rights which go to constitute personal liberty of a citizen. (Reliance was
particularly placed on paras 5,6 and 7 on pages 278-284).
Naphade further argued that this Court has held that in order to give concrete
shape to a right under Article 21, this Court can issue necessary directions in
the matter. If directions as regards arrest can be given, there is no reason why
guidelines cannot be framed by this Court as regards registration or non-registration
of an FIR under Section 154 Cr.P.C.
Naphade also submitted that the importance of the need of the police officer's discretion
of holding a preliminary inquiry is well illustrated by the judgment of this Court
in the case of Uma Shankar Sitani v. Commissioner of Police, Delhi and Ors.
1996 (11) SCC 714. In that case the complaint was lodged by one Sarvjeet Chauhan
against one Uma Shankar relating to alleged cognizable offence. Uma Shankar was
arrested and upon investigation it was found that the complainant was a
fictitious person. Somebody else had filed the false complaint. The residential
address of the fictitious complainant was also fictitious. In the whole process
Uma Shankar went through serious mental turmoil as not only the allegation was
found to be false, but he was arrested by the police and had to undergo humiliation
and loss of reputation. Such incidents can happen and must have happened in scores
of cases as filing of false cases due to personal, political, business rivalry,
break- down of matrimonial relationship etc. are rampant.
Naphade submitted that Section 498-A of I.P.C. which was meant to be a measure of
protection, turned out to be an instrument of oppression. Judicial notice of this
has been taken by this Court in the case of Preeti Gupta and Another v. State of
Jharkhand and Another (2010) 7 SCC 667. In the said case, this Court has referred
to rapid increase in filing of complaints which are not bona fide and are filed
with oblique motives. Such false complaints lead to insurmountable harassment,
agony and pain to the accused. This Court has observed that the allegations of the
complainant in such cases should be scrutinized with great care and circumspection.
Is it, therefore, not advisable that before registering an FIR, a preliminary
inquiry at least to verify the identity of the complainant and his residential address
should be carried out. This case illustrates how on a false complaint, a person's
right to life and liberty under Article 21 of the Constitution can be put to
Court in its judgment in Francis C. Mullin v. Administrator, Union Territory of
Delhi 1981 (1) SCC 608 [paras 4 and 5) has held that Article 21 requires that no
one shall be deprived of his life and personal liberty except by procedure established
by law and this procedure must be reasonable, fair and just.
If the procedure is
not reasonable, fair and just, the Court will immediately spring into action and
run to the rescue of the citizen. From this it can be easily deduced that where
the police officer has a reasonable doubt about the veracity of the complaint
and the motives that prompt the complainant to make the complaint, he can hold a
preliminary inquiry. Holding of preliminary inquiry is the mandate of Article
21 in such cases.
If the police officer
mechanically registers the complaint involving serious allegations, even though
he has doubts in the matter, Article 21 would be violated. Therefore, Section 154
must be read in the light of Article 21 and so read preliminary inquiry is
implicit in Section 154. In paras 7 and 8 of the said judgment, this Court has made
an unequivocal declaration of the law that any act which damages or injures or
interferes with use of any limb or faculty of a person, either permanently or even
temporarily, would be within the ambit of Article 21.
only this, every act which offends against and imperils human dignity, would
constitute deprivation pro tanto of this right to live and it would have to be in
accordance with the reasonable, just and fair procedure established by law which
stands the test of other fundamental rights. A baseless allegation is a
violation of human dignity and despite the police officer having doubts about
the allegation, he being required to register an FIR, would be a clear
infringement of Article 21.
Naphade further submitted that it is settled principle of law that no single
provision of a statute can be read and interpreted in isolation. The statute
must be read as a whole. In the present case, the provisions of Sections 41,57,
156, 157, 159, 167, 190, 200 and 202 of Cr.P.C. must be read together. These provisions
constitute the statutory scheme relating to investigation of offences and,
therefore, no single provision can be read in isolation. Both, Sections 41 and 154
deal with cognizable offence. Section 41 empowers the police to arrest any
person without warrant from the Magistrate if such person is concerned in any cognizable
offence or against whom a reasonable complaint has been made or credible information
has been received or reasonable suspicion exits of such person having been so
concerned with the cognizable offence. Section 41 also specifically refers to a
cognizable complaint about commission of a cognizable offence.
scheme of the Act is that after the police officer records an FIR under Section
154 Cr.P.C., he has to proceed to investigate under Section 156 Cr.P.C. and while
investigating the police officer has power to arrest. What is required to be noted
is that for the purpose of arresting the accused, the police officer must have a
reasonable ground to believe that the accused is involved in the commission of
a cognizable offence. If Sections 41 and 154 are so read together, it is clear that
before registering an FIR under Section 154 the police officer must form an opinion
that there is a prima facie case against the accused.
If he does not form
such an opinion and still proceeds to record an FIR, he would be guilty of an arbitrary
action. Every public authority exercising any powers under any statute is under
an obligation to exercise that power in a reasonable manner. This principle is well
settled and it forms an integral part of the legal system in this country.
Naphade submitted that the provisions of Section 154(3) enable any complainant whose
complaint is not registered as an FIR by the SHO to approach the higher police officer
for the purpose of getting his complaint registered as an FIR and in such case,
the higher police officer has all the powers of recording an FIR and directing investigation
into the matter.
Apart from this power
under Section 36 any police officer senior in rank to an officer in charge of the
police station can exercise the same powers as may be exercised by such officer
in charge of the police station. Provisions of Section 154 (3) and Section 36
are clear indication that in an appropriate case a police officer can either
decline to register the FIR or defer its registration.
The provisions of
Section 154(3) and Section 36 is a sufficient safeguard against an arbitrary refusal
on the part of a police officer to register the FIR. The very fact that a provision
has been made in the statute for approaching the higher police officer, is an indication
of legislative intent that in appropriate cases, a police officer may decline
to register an FIR and/or defer its registration.
addition to the remedy available to the aggrieved person of approaching higher police
officer, he can also move the concerned Magistrate either under Section 156(3) for
making a complaint under Section 190. If a complaint is lodged, the Magistrate can
examine the complainant and issue process against the accused and try the case himself
and in case triable by Sessions Court, then he will commit the case to Sessions
under Section 209.
Magistrate can also on receipt of a complaint, hold an enquiry or direct the police
to investigate. In addition to the above, the Magistrate also has a power to direct
investigation under Section 159 Cr.P.C. In the case of Mona Panwar v. High Court
of Judicature of Allahabad (2011) 3 SCC 496 in paras 17 and 18 on page 503 this
Court has, inter alia, held that if the complaint relating to a cognizable officer
is not registered by the police, then the complainant can go the Magistrate and
then the Magistrate has the option of either passing an order under Section 156(3)
or proceeding under Section 200/202 of the Code.
was also submitted by Mr. Naphade that an order under Section 156(3) of the Code
is in the nature of a preemptory reminder or intimation to the police to exercise
its plenary power of investigation under Section 156(1). Such an investigation embraces
the entire continuous process which begins with the collection of evidence under
Section 156 and ends with the vital report either under Section 169 or submission
of a charge-sheet under Section 173 of the Code. A Magistrate can under Section
190 of the Code before taking cognizance, direct investigation by the police by
order under Section 156(3) of the Code.
Naphade also submitted that the very fact that the Legislature has provided adequate
remedies against refusal to register an FIR and hold investigation in cognizable
offences is indicative of legislative intent that the police officer is not bound
to record an FIR merely because the ingredients of cognizable offences are disclosed
in the complaint if he has doubt about the veracity of the complaint.
further support of the proposition that a police officer is not bound to
register an FIR on mere disclosure of existence of ingredients of cognizable offence,
it is submitted that the statute does not contemplate that for the purpose of investigation,
recording of an FIR is a condition precedent. Section 156 empowers the police
to do so. Similarly, Section 157 clearly lays down that if from information received
or otherwise an officer in charge of the police station has reason to suspect the
commission of an offence, he can investigate into the same. In Section 157(1)
the expression "from information received" obviously refers to
complaint under Section 154 Cr.P.C. registered as an FIR.
The word "otherwise"
in Section 157 Cr.P.C. clearly indicates that recording of an FIR is not a condition
precedent to initiation of investigation. The very fact that the police have a
power of investigation independent of registration of an FIR is a clear pointer
to the legislative intent that a police officer is not bound to register an FIR
in each and every case.
Naphade relied on the case of Apren Joseph alias current Kunjukunju and Others v.
State of Kerala 1973 (3) SCC 114 wherein in para 11 this Court has held that recording
of an FIR is not a condition precedent for setting in motion criminal
investigation. In doing so, this Court has approved the observation of Privy Council
made in the case of Khwaja Nazim Ahmad (supra).
recording of an FIR under Section 154 Cr.P.C. is of no consequence unless the alleged
offence is investigated into. For the purpose of investigation after registration
of the FIR, the police officer must have reason to suspect commission of an offence.
Despite registration of the FIR, the police officer may not have a reasonable ground
to suspect that an offence has been committed and in that situation he may
decline to carry out investigation and may come to the conclusion that there is
no sufficient ground for carrying out investigation. If under the proviso (b) to
Section 157 Cr.P.C. the police officer has such discretion of not investigating,
then it stands to reason that registration of an FIR should not result into an
registration of an FIR should be effective and it can be effective only if further
investigation is to be carried out and further investigation can be carried out
only if the police officer has reasonable ground to suspect that the offence is
committed. If, therefore, there is no reasonable ground to suspect the commission
of cognizable offence, the police officer will not investigate and if that is a
situation, then on the same footing he may decline to register the FIR. This is
clearly implicit in the provisions of Section 154(1). It is, submitted that if the
provisions of Section 154 are read with Sections 41,57,156,157,159,167,190,200 and
202 Cr.P.C., the only possible conclusion is that a police officer is not bound
to register each and every case.
Naphade placed reliance on State of Maharashtra and Others v. Sarangdharsingh Shivdassingh
Chavan and Another (2011) 1 SCC 577 wherein in paragraphs 29 and 30, this Court
has observed as follows:- "29. The legal position is well settled that on information
being lodged with the police and if the said information discloses the commission
of a cognizable offence, the police shall record the same in accordance with the
provisions contained under Section 154 of the Criminal Procedure Code.
The police officer's power
to investigate in case of a cognizable offence without order of the Magistrate
is statutorily recognised under Section 156 of the Code. Thus the police officer
in charge of a police station, on the basis of information received or otherwise,
can start investigation if he has reasons to suspect the commission of any
This is subject to
provisos (a) and (b) to Section 157 of the Code which leave discretion with the
police officer in charge of police station to consider if the information is not
of a serious nature, he may depute a subordinate officer to investigate and if
it appears to the officer- in-charge that there does not exist sufficient ground,
he shall not investigate. This legal framework is a very vital component of the
rule of law in order to ensure prompt investigation in cognizable cases and to
maintain law and order."
submitted that if the police officer is of the opinion that the complaint is not
credible and yet he is required to register the FIR, then he would be justified
in not investigating the case. In such a case the FIR would become a useless lumber
and a dead letter. The police officer would then submit a closure report to the
Magistrate. The Magistrate then would issue notice to the complainant and hear him.
If the Magistrate is of the opinion that there is a case, then he may direct
police to investigate.
Napahde submitted that the aforesaid analysis of various provisions of Criminal
Procedure Code clearly bring out that the statutory provisions clearly maintain
a balance between the rights of a complainant and of the Society to have a wrongdoer
being brought to book and the rights of the accused against baseless
provisions have also to be read in the light of the principle of malicious prosecution
and the fundamental rights guaranteed under Articles 14, 19 and 21. Every citizen
has a right not to be subjected to malicious prosecution and every police
officer has an in- built duty under Section 154 to ensure that an innocent person
is not falsely implicated in a criminal case. If despite the fact that the police
officer is not prima facie satisfied as regards commission of a cognizable offence,
and proceeds to register an FIR and carry out investigation and thereby putting
the liberty of a citizen in jeopardy, he would expose himself to the charge of malicious
prosecution and against the charge of malicious prosecution the doctrine of
sovereign immunity will not protect him. There is no law protecting a police officer
who takes part in the malicious prosecution.
Naphade also submitted that the word "shall" used in the statute does
not always mean absence of any discretion in the matter.
word "shall" does not necessarily lead to provision being imperative
use of word "shall" raises a presumption that the particular provision
is imperative. But, this presumption may be rebutted by other considerations such
as, object and scope of the enactment and other consequences flowing from such
construction. There are numerous cases where the word "shall" has, therefore,
been construed as merely directory.
the case of Sainik Motors, Jodhpur and Others v. State of Rajasthan AIR 1961 SC
1480, Hidayatullah, J. has held that the word "shall" is ordinarily
mandatory, but it is sometimes not so interpreted if the context of intention
Subba Rao, J. in the case of State of Uttar Pradesh and Others v. Babu Ram
Upadhya AIR 1961 SC 751, has observed that when the statute uses the word "shall"
prima facie it is mandatory, but the Court may ascertain the real intention of the
legislature carefully attending to the whole scope of the statute.
the case of State of Madhya Pradesh v. M/s Azad Bharat Finance Co. and Another AIR
1967 SC 276 it has been held that the word "shall" does not always mean
that the provision is obligatory or mandatory. It depends upon the context in which
the word "shall" occur and the other circumstances.
the case of Shivjee Singh (supra) it has been held that the use of word
"shall" in proviso to Section 202 (2) of Cr.P.C. prima facie is indicative
of mandatory character of the provision contained therein. But, a close and critical
analysis thereof along with other provisions show that the same is not mandatory.
Further, it has been observed that by its very nomenclature, Cr.P.C. is a compendium
of law relating to criminal procedure. The provisions contained therein are required
to be interpreted keeping in view the well recognized rule of construction that
procedural prescriptions are meant for doing substantial justice. If violation of
procedural provisions does not result in denial of a fair hearing or causes
prejudice to the party, the same has to be treated as directly notwithstanding
the use of the word "shall".
P.T. Rajan (supra), this Court has discussed the principles as to whether a statute
is mandatory or directory. The Court has observed that a statute as is well
known must be read in the text and context thereof. Whether a statute is
directory or mandatory would not be dependent on the use of the word
"shall" or "may". Such a question must be posed and
answered having regard to the purpose and object it seeks to achieve. It has
further been held that a provision in a statute which is procedural in nature although
employs the word "shall" may not be held to be mandatory if thereby
no prejudice is caused. The analysis of various provisions of Cr.P.C. clearly
shows that no prejudice is caused if police officer does not register an FIR. The
complainant has effective remedies under Sections 154(3), 156, 190 Cr.P.C. etc.
Naphade, the learned senior counsel submitted that it is impossible to put the
provisions of Section 154 Cr.P.C. in any straight jacket formula. However, some
guidelines can be framed as regards registration or non- registration of an FIR.
According to him, some such guidelines are as follows:-
a. Normally in the ordinary
course a police officer should record an FIR, if the complaint discloses a cognizable
offence. However, in exceptional cases where the police officer has reason to suspect
that the complaint is motivated on account of personal or political rivalry, he
may defer recording of the FIR, and take a decision after preliminary enquiry.
b. In case of complaints
which are a result of vendetta like complaints under Section 498A Cr.P.C.
(IPC), the police officer should be slow in recording an FIR and he should record
an FIR only if he finds a prima facie case.
c. The police officer may
also defer recording of an FIR if he feels that the complainant is acting under
a mistaken belief.
d. The police officer may
also defer registering an FIR if he finds that the facts stated in the complaint
are complex and complicated, as would be in respect of some offences having financial
contents like criminal breach of trust, cheating etc.
aforesaid are only illustrations and not exhaustive of all conditions which may
warrant deferment of an FIR.
second aspect of the matter is what test should the police officer take in case
he is of the opinion that registration of an FIR should be deferred. He suggested
the following measures :-
1. The police officer
must record the complaint in the Station/General Diary. This will ensure that
there is no scope for manipulation and if subsequently he decides to register an
FIR, the entry in Station/General Diary should be considered as the FIR. . He should
immediately report the matter to the superior police officer and convey him his
reasons or apprehensions and take his permission for deferring the registration.
A brief note of this should be recorded in the station diary.
3. The police officer
should disclose to the complainant that he is deferring registration of the FIR
and call upon him to comply with such requisitions the police officer feels
necessary to satisfy himself about the prima facie credibility of the complaint.
The police officer should record this in the station diary. All this is necessary
to avoid any charge as regard to the delay in recording the FIR. It is a
settled law that a mere delay in registering an FIR is not harmful if there are
adequate reasons to explain the delay in filing an FIR.
to him, in the light of the above discussion in respect of the impact of Article
21 on statutory provisions, it must be held that Section 154 of Cr.P.C. must be
interpreted in the light of Article 21. The requirement of Article 21 is that
the procedure should be just and fair. If, therefore, the police officer
himself has doubts in the matter, it is imperative that he should have the discretion
of holding a preliminary inquiry in the matter. If he is debarred from holding
such a preliminary inquiry, the procedure would then suffer from the vice of arbitrariness
counsel appearing for the State of Tamil Nadu adopted the arguments submitted
by Mr. Naphade, the learned senior counsel for Maharashtra and submitted that ordinarily
a police officer has to register an FIR when a cognizable offence is made out, but
in exceptional cases he must have some discretion or latitude of conducting some
kind of preliminary inquiry before recording of the FIR.
counsel for the parties have drawn our attention to two sets of cases decided by
this Court expressing totally divergent judicial opinions. We deem it appropriate
to briefly summarise them in the following paragraphs.
Court in the case of Bhajan Lal and Others (supra), Ramesh Kumari (supra), Parkash
Singh Badal and Another v. State of Punjab and Others (2007) 1 SCC 1 and Aleque
Padamsee and Others (supra) held that if a complaint alleging commission of cognizable
offence is received in the Police Station, then the S.H.O. has no option but to
register an F.I.R. under Section 154 Cr.P.C..
the other hand, this Court in following cases, namely, Rajinder Singh Katoch (supra),
P. Sirajuddin etc. v. State of Madras etc. 1970 (1) SCC 595, Bhagwant Kishore Joshi
(supra), Sevi and Another etc. v. State of Tamil Nadu and Another 1981 (Suppl.)
SCC 43 have taken contrary view and held that before registering the FIR under Section
154 of Cr.P.C., it is open to the SHO to hold a preliminary enquiry to 7 ascertain
whether there is a prima facie case of commission of cognizable offence or not.
deem it appropriate to give a brief ratio of these cases.
Bhajan Lal (supra), this Court observed as under:- "It is, therefore, manifestly
clear that if any information disclosing a cognizable offence is laid before an
officer in charge of a police station satisfying the requirements of Section 154(1)
of the Code, the said police officer has no other option except to enter the substance
thereof in the prescribed form, that is to say, to register a case on the basis
of such information."
Ramesh Kumari (supra), this Court observed that the provision of Section 154 of
the Code is mandatory and the officer concerned is duty-bound to register the case
on the basis of such an information disclosing cognizable offence.
Parkash Singh Badal (supra), this Court observed as under:- "It is, therefore,
manifestly clear that if any information disclosing a cognizable offence is laid
before an officer in charge of a police station satisfying the requirements of Section
154(1) of the Code, the said police officer has no other option except to enter
the substance thereof in the prescribed form, that is to say, to register a case
on the basis of such information."
Aleque Padamsee (supra), this Court observed as under :- "The correct
position in law, therefore, is that the police officials ought to register the FIR
whenever facts brought to their notice show that cognizable offence has been
is another set of cases where this Court has taken contrary view.
Rajinder Singh Katoch (supra), this Court observed as under:- "We are not oblivious
to the decision of this Court in Ramesh Kumari v. State (NCT of Delhi) wherein such
a statutory duty has been found in the police officer. But, as indicated hereinbefore,
in an appropriate case, the police officers also have a duty to make a preliminary
enquiry so as to find out as to whether allegations made had any substance or not."
Bhagwant Kishore Joshi (supra), Mudholkar, J. in his concurring judgment has observed
as under:- "I am of opinion that it is open to a Police Officer to make preliminary
enquiries before registering an offence and making a full scale investigation
P. Sirajuddin etc. (supra), this Court quoted the observations of the High
Court as under:- "(a) "substantial information and evidence had been gathered
before the so-called first information report was registered"."
Sevi and Another (supra), this Court observed as under:- "If he was not satisfied
with the information given by PW 10 that any cognizable offence had been committed
he was quite right in making an entry in the general diary and proceeding to the
village to verify the information without registering any FIR."
is quite evident from the ratio laid down in the aforementioned cases that different
Benches of this Court have taken divergent views in different cases. In this
case also after this Court's notice, the Union of India, the States and the Union
Territories have also taken or expressed divergent views about the interpretation
of Section 154 Cr.P.C.
have carefully analysed various judgments delivered by this Court in the last several
decades. We clearly discern divergent judicial opinions of this Court on the
main issue whether under Section 154 Cr.P.C., a police officer is bound to register
an FIR when a cognizable offence is made out or he (police officer) has an
option, discretion or latitude of conducting some kind of preliminary enquiry
before registering the FIR.
counsel appearing for the Union of India and different States have expressed totally
divergent views even before this Court. This Court also carved out a special category
in the case of medical doctors in the aforementioned cases of Santosh Kumar (supra)
and Dr. Suresh Gupta (supra) where preliminary enquiry had been postulated
before registering an FIR.
counsel also submitted that the CBI Manual also envisages some kind of
preliminary enquiry before registering the FIR. The issue which has arisen for consideration
in these cases is of great public importance.
view of the divergent opinions in a large number of cases decided by this Court,
it has become extremely important to have a clear enunciation of law and
adjudication by a larger Bench of this Court for the benefit of all concerned -
the courts, the investigating agencies and the citizens.
we request Hon'ble the Chief Justice to refer these matters to a Constitution
Bench of at least five Judges of this Court for an authoritative judgment.